Ludhiana Improvement Trust vs Hans Raj .

J.V. Gupta, J.—This order will dispose of Regular Second Appeal Nos. 186 and 187 of 1983, as the judgment out of which they have arisen is common in both of them. These appeals have been filed by the defendantappellant against whom the suit for the grant of the permanent injunction has been decreed by both the Courts below.

Hans Raj and Banarsi Dass sons of Sunder Dass filed the suit giving rise to Regular Second Appeal No. 186 of 1983 whereas Ranjit Singh filed the suit giving rise to Regular Second Appeal No. 187 of 1983. Both the suits were filed for seeking the relief of perpetual injunction restraining the defendant from taking possession of their shops either through its officers or employees or through police or through any other means. Both the suits were consolidated by the trial Court vide order dated July 27, 1976. The acquisition made by the appellant was mainly challenged on the ground that the suit property was evacuee property belonging to the Central Government and, therefore, the same could not be acquired on behalf of the State under the Punjab Town Improvement Act, 1922, (hereinafter called the Act). Allegations were also made that the acquisition of the property was ultra vires and mala fide. However, no particulars in regard to the want of notice etc. were given in the plaint. On the pleadings of the parties, several issues were framed by the trial Court. However, the main issue was issue No. 2, which was to the effect : whether the acquisition of the property, in dispute, by defendant No. 2 is ultra vires and mala vide ? Thereunder the trial Court found that the acquisition of the property, in dispute, was illegal. In order to come to this conclusion the judgment rendered by Shri Tara Singh, Subordinate Judge, First Class, Ludhiana, in Suit No. 8 of 1971 (M/s Guru Ram Dass Bakery v. The Ludhiana Improvement Trust), on October 19, 1976, was relied upon. In the said suit, the very notification under challenge in this suit, was declared to be illegal since the property was earlier owned by the Central Government. In the said suit, the learned trial Court relied upon the judgment of this court in Hari Chand v. State of Punjab, AIR 1972 P&H 25. It also found that no notice was issued to the occupants of the suit land and, therefore, the acquisition was illegal on that ground also. Consequently, the plaintiffs'' suits were decreed. In appeal, the learned Additional District Judge affirmed the said findings of the trial Court and, thus, maintained the decrees passed in favour of the plaintiffs. Dissatisfied with the same, the defendant has come up in second appeal to this Court.

The learned counsel for the appellant contended that the view taken by Shri Tara Singh, Subordinate Judge First Class, Ludhiana, in the suit filed on behalf of M/s Guru Ram Dass Bakery (suit No. 8 of 1971), has not found favour with the Division Bench of this Court in Jullundur Improvement Trust, Jullundur v. Northern Carriers Private Ltd., 1982 PLJ 505 : 1984 R.R.R. 665, and that in view of the said judgment of the Division Bench, these appeals are liable to be allowed. On the question of want of notice, the learned counsel contended that earlier both the plaintiffs and others had jointly filed Civil Writ Petition No. 3515 of 1971 (Gurbux Singh v. The State of Punjab), decided on February 14, 1975, challenging the very notification and also for issuing the appropriate writ, direction or order to the appellant to frame a rehousing scheme in accordance with the provisions of sections 26 and 27 of the Act. The said writ petition was ultimately dismissed by this Court vide order dated February 14, 1975. In paragraph 2 of the said writ petition, the petitioners (now the plaintiffs) inter alia admitted.

"Notices were issued to the interested persons to file objections against this acquisition. After hearing the objections, the Trust passed another resolution No.473 on the 23rd July, 1973, reiterating that the execution of the scheme was necessary and it was decided that the Chairman in consultation with the Trust Engineer should put up concrete proposal regarding the development of this site taking into consideration the planning point of view as also what has been stated by the objectors. A copy of this resolution is attached as Annexure ''B'' to this petition."

Besides, the plaintiffs themselves filed Civil Miscellaneous Applications under Order VI Rule 17, Code of Civil Procedure, for permission to amend the plaint with a view to add the additional ground of attack. The additional ground of attack sought to be taken was that the appellant after having issued the notice under section 36 of the Act, did not, during the 30 days next following the first day on which the said notice was published, serve the same on the plaintiffs in accordance with the provisions of section 38 of the Act. In reply thereto, the appellant also filed the statement of objections showing the objections filed on behalf of the plaintiffs. In view of this fact, it was contended that no specific plea was taken in the plaint regarding the want of notice and, therefore, any finding given by the Courts below in this behalf was wrong and illegal. On the other hand, the learned counsel for the respondents submitted that the acquisition of the suit land was illegal as no notice was issued under section 36 of the Act and consequently, the notifications, Exhibits PX and PY, dated August 17, 1972 and October 17, 1976 respectively, were vague and were liable to be quashed. The learned counsel also contended that the scheme as such could not be enforced as its major portion had already been declared illegal in Regular Second Appeal No. 274 of 1974 decided on October 28, 1982, by this Court.

I have heard the learned counsel for the parties and have also gone through the caselaw cited at the bar.

The main consideration upon which the suits filed by the plaintiffs were decreed by the trial Court was the judgment rendered by Shri Tara Singh, Subordinate Judge, First Class, in Suit No. 8 of 1971 (M/s Guru Ram Dass Bakery v. The Ludhiana Improvement Trust), decided on October 19, 1976. But the view taken by the learned trial Court in the said case has not found favour with the Division Bench of this Court in Northern Carriers'' case (supra). Apart from that it is not disputed that in view of the said decision by the Division Bench of this Court, it could not be upheld that the acquisition of the suit land was bad in these suits because the land originally belonged to the Central Government. The main argument raised on behalf of the respondents is that since there was want of notice as required under section 38 of the Act, the whole acquisition proceedings were vitiated and, thus, were illegal. Admittedly, no such specific plea was taken in the plaints, nor was there any specific issue to this effect. The issue framed by the trial Court in this behalf was only to the effect whether the acquisition of the property, in dispute, was ultra vires and mala fide, as noticed in the earlier part of this judgment, whereas the ground for declaring the acquisition as ultra vires now canvassed was want of notice. The plaintiffs could not be allowed to lead any evidence on the point of want of notice in the absence of such a plea and, thus, any finding given by the Courts below on this point was without any pleadings. However, the very fact that the plaintiffs themselves moved the civil miscellaneous applications for amendment of the plaints, as observed earlier, further prove that no such ground was taken by them in the plaints. Apart from that, admittedly, the plaintiffs along with others, filed Civil Writ Petition No. 3515 of 1971 in this Court challenging the acquisition of the land and also for the issuance of any appropriate direction for not implementing the impugned scheme till the rehousing scheme under sections 26 and 27 of the Act, was framed by the appellant. It could not be disputed that the said petition was dismissed vide this Court order dated February 14, 1975. Of course, it has been observed therein :

"I have already held above that the petitioner has filed a civil suit and, as such, the writ petition is not maintainable. As the writ petition is liable to be dismissed on that preliminary objection, I do not propose to decide the petition on merits."

However, as noticed in the earlier part of this judgment, in paragraph 2 of Civil Writ Petition No. 3515 of 1971, it has been inter alia clearly admitted by the petitioners that the notices were issued to the interested persons to file the objections against the acquisition of the land. In view of these facts, the findings of the Courts below on the question of notice, as observed earlier, were without any pleadings. The plaintiffs could not be allowed to amend the plaints and to take up this plea at this stage in view of their conduct in filing Civil Writ Petition No. 3515 of 1971, and themselves admitting therein the issuance of the notices to them.

As regards the contention that the scheme cannot be enforced as a part thereof has already been declared illegal in Regular Second Appeal No. 247 of 1974, decided on October 28, 1982, I do not find any merit therein either. The learned counsel for the respondents cited Sarju Prasad v. State of U.P., AIR 1965 Supreme Court 1763, and Inder Singh v. The State of Punjab, 1978 PLJ 385, in support of the contention, but I do not find that any such proposition was decided in the abovesaid two cases. Of course, at the instance of one person the whole notification could be declared ultra vires, but if the land acquired under the notification is distinct and separate then only the persons who successfully challenge the same could take the benefit of the declaration. Regular Second Appeal No. 274 of 1974, decided on October 28, 1982, was decided in view of the judgment of this court in Hari Chand''s case (supra). But in view of the Division Bench judgment of this Court in Northern Carriers'' case (supra), the acquisition of suit land could not be held to be illegal on that ground in these suits. Thus, on the basis of the judgment rendered in Regular Second Appeal No. 274 of 1974, decided on October 28, 1982, it could not be successfully argued that these appeals be allowed simply on the ground that the notification has been found to be illegal earlier. The right of each party is separate and distinct and, therefore, even if the notification was bad qua certain persons, it could not be said to be ineffective against others also. Moreover, this very notification was also challenged in Civil Writ Petition No. 1663 of 1967 (Salig Ram v. State of Punjab) decided on October 30, 1968, by other persons who are the plaintiffs in the other appeals. All these objections were taken therein against the acquisition of land, but were repelled by this Court. The decision in Civil Writ Petition No. 1663 of 1967, was upheld by the Letters Patent Bench in Letters Patent Appeal No. 622 of 1968.

No other point has been raised.

Consequently, both the appeals are allowed. The judgments and decree of the Courts below are set aside and the plaintiffs'' suits are dismissed with costs.